Charles Fried observes the potential dangers of a Justice who can’t write:

[I]f the justice cannot write then someone is going to have to do that writing for the justice, and that will inevitably be the justice’s law clerks. Those law clerks almost to a person are wizards at untangling legal puzzles and masters at setting out the answers in precise if usually turgid and uncompelling prose. But they are also young graduates without wisdom, experience, or a constitutional mandate to help run the country.

You think that this is a theoretical concern? Think again. Time for another trip to my favorite Supreme Court book, The Brethren, to read about the horrific Thurgood Marshall — who was entirely dominated by his clerks, as these excerpts show:

One of the issues that Marshall enjoyed arguing with his clerks was the question of what was obscene. He loved to take conservative positions with them, maintaining that anything hard-core could and should be totally banned. What was so important about it? First Amendment principles are not at stake in this case, he would bellow. Dirty pictures are.

What about his liberal opinion for the Court in Stanley? his clerks would ask.

He had meant only to protect people’s privacy in their own homes, he would claim with a grin. Publishers, distributors, sellers could be stopped.

But, a clerk once pointed out, “You said that the right to privacy must go further than the home.”

“No,” Marshall retorted. He had never said that.

Yes, the clerk insisted.

No, never, Marshall was sure. “Show me.”

The clerk brought the bound opinions.

Marshall read the relevant section.

“That’s not my opinion, that’s the opinion of [a clerk from the prior term],” he declared. Opening the volume flat, he tore the page out. “There. It’s not there now, is it?” [p. 233]

But surely this happened with only one opinion, right? Nope:

Marshall was unhappy with Stewart’s position. He assigned one of his law clerks, among the best at the Court, to prepare a devastating legal analysis of the majority opinion. For months the clerk did nothing else. Marshall circulated the forty-page dissent, responding to each of Powell’s arguments and to some not even offered. It was well-reasoned, even brilliant.

How, Powell asked his clerks, did Marshall turn out such a masterpiece so quickly?

The clerks were frank. Marshall’s clerk was first-rate, and Marshall had given him several months to write the opinion. Depending on whom you believed, Marshall himself had spent maybe fifteen minutes to an hour going over the draft.

Powell couldn’t quite believe it. “Who is the Justice down there?” he asked rhetorically.

He finally decided to see for himself. Congratulating Marshall on his fine dissent, Powell asked him a question regarding one of the major issues. “Did I say that?” Marshall cracked, brushing the question aside. Powell was not sure Marshall even understood the question. [pp. 306-307]

Perhaps this sort of thing doesn’t concern some of you. After all, the dissent in the second excerpt is described as “brilliant.” And Marshall was certainly a reliable liberal vote. The book says Marshall

often told his clerks, half-jokingly, “I’ll do whatever Bill [Brennan] does,” sometimes even jotting “follow Bill” on his notes. He trusted Brennan’s resolution of the detailed, technical questions of legal scholarship. The clerks had taken to calling Marshall “Mr. Justice Brennan-Marshall.” [p. 50]

You may think: hey, you couldn’t get a more reliable vote for a particular side. What’s wrong with that? Maybe we should get ourselves a Justice Scalia-Miers!

If that’s your feeling, then you and I simply see the Court differently. I find these excerpts embarrassing. These law clerks had no official role under the Constitution. If these excerpts are accurate, and I believe they are, then Justice Marshall simply abdicated his constitutional role as a Supreme Court Justice. He let 24-year-old law clerks sneak concepts he disapproved of into his opinions, and he had almost no idea what they were making into the law of the land, using his authority.

I don’t know about you, but I don’t want another Justice like that. So get me someone who knows how to read and write. Please.